Friday, March 15, 2002
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S.C. Broadly Interprets Ban on Unauthorized Recording of Phone Calls
Justices, Ruling Unanimously, Say Taping Is Illegal Regardless of Whether There Is Intent to Disseminate
By KENNETH OFGANG, Staff Writer/Appellate Courts
It is illegal to record a telephone conversation if the other party has an objectively reasonable expectation that the call is not being taped, the California Supreme Court ruled yesterday.
The high court unanimously overturned a ruling by this district’s Court of Appeal, which was ordered to reconsider Glendale lawyer J. Michael Flanagan’s appeal from a judgment awarding him only $5,000 in damages against his stepmother for illegally recording phone conversations between him and his late father.
A Los Angeles Superior Court jury found that Honorine Flanagan had illegally taped 24 conversations and awarded her stepson $5,000 in statutory damages for each of them, plus $1.2 million in punitive damages.
Judge Ralph Dau, however, cut the total award to $5,000. He concluded that punitive damages are not recoverable under the California Invasion of Privacy Act, and that the provision entitling a plaintiff to the greater of $5,000 or three times the actual damages applies to the action as a whole, not to each violation.
On appeal, this district’s Div. Five said the trial judge was right about punitive damages, reasoning that the statutory damage provision was intended to be exclusive, although plaintiffs may still bring common-law privacy claims and recover punitive damages, the court held.
The court said Dau was wrong about statutory damages, but only increased the judgment to $10,000.
The panel, with Justice Margaret Grignon writing the opinion, found that only two of the conversations were actionable. Grignon cited a 1990 Court of Appeal decision holding that a conversation is confidential only if the party has an objectively reasonable expectation that the content will not later be divulged to third parties.
That decision, and a 1997 Ninth U.S. Circuit Court of Appeals ruling that followed it, were wrong, Justice Joyce L. Kennard wrote yesterday for the high court. The justice cited two other Court of Appeal decisions that followed the broader rule, and sent the case back to Div. Five to consider whether Flanagan is entitled to the full $120,000 in damages for the 24 conversations.
The lawsuit arose out of a battle between Honorine Flanagan and her stepson over John Flanagan’s multimillion-dollar estate.
John Flanagan died in March 1997, leaving everything to his wife. His son contested the will, but lost in Riverside Superior Court and in the Court of Appeal, and his petition for review was denied last year by the high court last year.
Michael Flanagan accused his stepmother of injecting his father with water instead of with the medication that had been prescribed for the elder Flanagan’s prostate cancer. This was done, the son alleged, after the father had raised the possibility of leaving one-third of his estate to Michael Flanagan and his sister, rather than leaving all of it to his wife as he had previously announced.
Suit Filed
In July 1996, while John Flanagan was still living—although in poor health—Honorine Flanagan sued her stepson for slander, invasion of privacy, and infliction of emotional distress.
Michael Flanagan responded with a cross-complaint, including claims for multiple violations of Penal Code Sec. 632, which generally prohibits the recording of “confidential communications” without the consent of both parties.
The statute makes such recording a crime, in addition to providing for the civil remedy.
At trial, Michael Flanagan presented evidence that his stepmother had installed a recording device on her home telephone, without the knowledge of her husband or stepson. The jury, which rejected Honorine Flanagan’s claims against her stepson, found for him on 24 of his 27 claims of illegal recording.
Kennard, writing for the high court, noted that the express purpose of the Privacy Act is to “protect the right of privacy for the people of this state.” She also cited the 1985 and 1990 amendments to the act which extended its coverage to cellular phone and cordless phone communications.
Scope of Prohibition
The jurist reasoned:
“Significantly, those statutes protect against interception or recording of any communication. When the Legislature determined that there was no practical means of protecting cordless and cellular phone conversations from accidental eavesdropping, it chose to protect all such conversations from malicious or intentional eavesdropping or recording, rather than protecting only conversations where a party wanted to keep the content secret. The scope of this prohibition indicates…that the Legislature’s ongoing concern is with eavesdropping or recording of conversations, not later dissemination. It would be anomalous to interpret the Privacy Act as protecting all cellular or cordless phone conversations, but only those landline conversations that the parties intended to keep secret….”
The case was argued in the Supreme Court by Glendale attorney Jerry K. Straub of the Law Offices of Jerry K. Straub for Michael Flanagan, and by A. Kristine Floyd of the Irvine office of Allen Matkins Leck Gamble & Mallory for Honorine Flanagan.
Gary L. Bostwick, Kelli L. Sager, Karen N. Frederiksen and Andrew J. Thomas of Davis Wright Tremaine—representing CBS, NBC, ABC, CNN, and The Copley Press—filed an amicus brief in support of Honorine Flanagan.
The case is Flanagan v. Flanagan, 02 S.O.S. 1369.
Copyright 2002, Metropolitan News Company